In light of these events and the fact that this appeal presents pure questions of law, plaintiffs have moved this court to consider the merits of their claims and to direct the entry of an injunction.

In the ensuing analysis, the question arises whether the Florida Supreme Court's decision in Harris announced a new vote counting scheme for statewide elections in Florida or whether it merely interpreted the pre-existing vote counting model. Either answer to this question presents a pure question of constitutional law. In Part III, I address the question from the starting point that the Florida Supreme Court announced a new vote counting model for Florida. In Part IV, I address the question from the other starting point - that the Florida Supreme Court merely clarified the pre-existing vote counting model. Before I embark on the analysis, however, I discuss the competing "models" that have been presented as properly implementing Florida's statutory election system is appropriate and instructive. Part II undertakes this discussion.

II.

In Palm Beach County Canvassing Board v. Harris, Nos. SC00-2346, SC00-2348, SC00-2349 (Fla. Nov. 21, 2000), vacated by Bush v. Palm Beach County Canvassing Bd., No. 00-836, ___ U.S. ___, ___ S. Ct. ___, ___ L. Ed. 2d ___ (Dec. 4, 2000), the Florida Supreme Court was faced with conflicting interpretations of the state's election statutes. The Florida Secretary of State, as appellee before the supreme court, interpreted the statutes as having created one vote counting model, and the Florida Attorney General, as intervenor-appellant, interpreted the statutes as embodying a different model. In Harris, the court rejected the Secretary of State's interpretation in favor of the interpretation advocated by the Attorney General.

In order to understand the court's decision in Harris, one must consider two things. First, one has to understand how Florida voters cast their ballots in a general election, including the one held on November 7. Second, one must compare the model for counting votes advocated by the Secretary of State with the model that emerged from the Florida Supreme Court's opinion.

A.

In the November 7 election, voters in 65 Florida counties cast their votes on paper ballots read by vote tabulating machines. ⁽¹⁵⁾ For ease of discussion, I describe the voting process as it occurs in counties that use punch card ballots. ⁽¹⁶⁾A voter can return a punch card ballot in one of three conditions: (1) the voter may take a ballot but choose not to vote in any election or referendum, so that the ballot contains no punched holes when returned; (2) the voter may vote in some but not all contests, so that the ballot contains punched holes in some races when returned; or (3) the voter may vote in all contests, so that the ballot is returned with a hole punched for every race. If a voter returns the ballot with holes punched in some contests but not others, the ballot is said to be "undervoted." ⁽¹⁷⁾

To count the votes, the ballots are fed into a punch card reading machine (the "vote tabulating machine") programmed to tabulate votes based on the location of holes punched. This machine count is conducted in every election, and, in most elections, is the only count. Recognizing that machines are not infallible, however, the Florida legislature created a failsafe manual recount provision that permits a candidate or political party to request a manual recount to verify the machine tabulation. ⁽¹⁸⁾

While the process for counting votes is fixed by statute, there is room for interpretation in its implementation. Perhaps the most important part of the statutory system left open to interpretation is what constitutes a valid vote. The Florida Supreme Court noted in Harris that the ultimate goal in conducting an election is "to reach the result that reflects the will of the voters." Harris, at 9. The election statutes, however, do not provide guidelines outlining how the will of individual voters should be determined from their ballots. It is this lack of guidance that gave rise to the differing interpretations propounded by the Secretary of State and the Attorney General. According to the Secretary, a voter's will is only adequately expressed by properly casting a vote such that the machine can read it. Under the Attorney General's interpretation, with which the supreme court agreed, a vote is valid if it demonstrates the voter's intent in any ascertainable manner, whether read by the machine or not. To understand the model that emerged from Harris, one must first examine the model as understood by the Secretary of State.

B.

1.

The Secretary's vote counting model, which was in place prior to the supreme court's decision, applied a fixed, objective standard for determining voter intent - voters were required to indicate their voting intent unequivocally by marking their ballots in such a way that the vote tabulating machine, with its pre-programmed evaluation standard, could read it. I refer to this vote counting model as the "machine model," because it counts as valid only those votes that the vote tabulating machine can read and record. The machine model thus relies on an objective tabulating machine that admits of no discretion to count votes - if a vote is properly cast according to the instructions given to the voter, ⁽¹⁹⁾ the machine will count it. ⁽²⁰⁾

Under the machine model, the purpose of the manual recount provision (the failsafe in the statutory election system) is to allow a candidate or his party to request human verification that the vote tabulating machine functioned properly. This construction of the manual recount provision explains why a canvassing board is given three alternatives in section 102.166(5) in the event that it grants a manual recount request and the three-precinct sample manual recount reveals "an error in the vote tabulation." ⁽²¹⁾

The first two options permitted under section 102.166(5) do not require a complete manual recount of votes county-wide, but rather involve making repairs to the machine tabulating system so that it properly counts the votes. Only the third option available to the canvassing board permits a county-wide manual recount of ballots. The availability of these alternative solutions to correct an error in vote tabulation suggests that a full manual recount is appropriate only when the machine tabulating system has failed irreparably.

The Secretary of State, pursuant to her authority under section 97.012(1), interpreted the statutory system as the machine model. Nevertheless, the Florida Supreme Court, in its November 21 decision, rejected the machine model and, in effect, propounded a different model requiring a fluid, subjective test for ascertaining voter intent when counting votes.

2.

The Florida Supreme Court ruled that a ballot marked improperly, so that a vote tabulating machine reads it as undervoted, must nevertheless be examined for any evidence of voter intent that might be construed as a vote. ⁽²²⁾ This conflicts with the Secretary of State's position that voter intent is sufficiently discerned by properly functioning vote counting machines. ⁽²³⁾ According to the supreme court, ballots must be inspected by hand because vote tabulating machines do not sufficiently read voter intent. ⁽²⁴⁾ The vote counting model that emerged from the supreme court's decision requires the counting of votes improperly cast (according to the Secretary's model) as valid votes if, applying a subjective standard, voter intent can be ascertained by manual inspection of the ballot.

While the court endorsed counting votes by looking at each race on a ballot to determine whether the voter intended to cast a vote in that race, the court did not provide uniform standards for counties to follow in determining voter intent. ⁽²⁵⁾ The court left to each county canvassing board that conducts a manual recount the unfettered discretion to set its own standards. Under this standardless system, a mark on a punch card ballot that is deemed a sufficient showing of intent to be counted as a vote in one county might be deemed a non-vote by another county. ⁽²⁶⁾

Furthermore, although the court held that vote tabulating machines do [not necessarily discern valid expressions of voter intent, it did not order that all 65 counties that use such machines begin manually examining all undervoted ⁽²⁷⁾ ballots for any sign of voter intent. Rather, the court left the candidates or their parties with the option of requesting a count of undervoted ballots by invoking the manual recount statute in any one or more counties.

Accordingly, applying Harris to my punch card example, indentations on punch card ballots - which I call "dimple votes" - may be counted as valid votes in selected counties. ⁽²⁸⁾ The necessary implication of this model, given that the machines are not programmed to count dimples, is that a vote tabulating machine is merely a screening device - a method of determining the intent of voters who properly punched their ballots - that is inadequate as a tabulating device because it fails to count all valid votes.

If the vote tabulating machines serve merely as a screening device in counting valid votes, then the legislature, in enacting sections 102.166(4)-(7), inaptly refers to the process of manually counting dimple votes as a "recount." In fact, a county's initial vote count (including the automatic recount) is not complete until all ballots containing non-votes in any race have been examined manually. Nevertheless, section 102.166(4) provides that such a manual examination of ballots will be conducted only at a candidate or political party's request, and only in those specific counties chosen by the candidate or political party. ⁽²⁹⁾ In other words, while Harris presumes that vote tabulating machines will not count all valid votes, it precludes the counting of remaining votes except in those counties selected by a candidate or his party. Under this "selective dimple model," ⁽³⁰⁾ dimple votes cast in a county where no "recount" is requested are simply not counted.

Under the selective dimple model, the standard of evaluating voter intent (i.e., what constitutes a valid vote) in a manual recount will differ from the standard applied by the machines in the initial count. The model, therefore, lends itself to several undesirable results. ⁽³¹⁾

Since the selective dimple model leaves to the candidates the decision of whether and where dimple votes should be included in the final vote tally, the system encourages candidates to cherry-pick - to carefully select the counties in which to request that ballots be manually examined for dimple votes. Under the selective dimple model, a candidate will choose the counties based on: (1) the percentage of the total machine-tabulated vote received; (2) the size of the county, measured by the total number of ballots cast in the election; and (3) the political makeup of the canvassing board in the county. ⁽³²⁾ A candidate will want dimple votes counted in counties where he captured a greater proportion of the machine tabulated vote than did his opponent, because the candidate can expect that he will likely take a similar proportion of the dimple votes. ⁽³³⁾A candidate will favor counties where the most ballots were cast because those counties will have the most dimple votes. ⁽³⁴⁾ The political composition of the county canvassing board will be critical to a candidate in making selective manual count requests for two reasons. First, the election statutes give the canvassing board unfettered discretion to honor a candidate's request to manually examine ballots. ⁽³⁵⁾ Second, if the canvassing board grants the request, the election system affords the canvassing board unfettered discretion to set the standards for determining which markings on a ballot demonstrate voter intent sufficient to constitute a vote. ⁽³⁶⁾ Thus, a candidate is more likely to have his request for a manual count granted, and to receive favorable interpretations of voter intent, in counties where the candidate shares a political party affiliation with the majority of the canvassing board.

As discussed above, section 102.166(5) allows the county canvassing board to conduct a recount ⁽³⁷⁾ only if the results of the recount "could affect the outcome of the election." Seemingly, the candidate who received the most votes state-wide according to the machine tabulation could never demonstrate that a manual recount of any county could affect the outcome of the election, ⁽³⁸⁾ since adding dimple votes would only serve to increase that candidate's margin of victory. Thus, it is doubtful that a county canvassing board would, in its discretion, grant such a candidate's request for the sample manual recount. Arguably, however, granting the candidate's request could affect the outcome of the election if his opponent is granted full recounts in other counties, and thereby gains a significant number of votes. Given that the canvassing board has limited time to certify the election results, and that one board may not know whether another county will manually recount its ballots, I question exactly what remains to guide a canvassing board in its decision to grant or deny a manual count.

The selective dimple model also encourages candidates to manipulate the timing of manual recount requests, so as to use the statutory limitations period to foreclose his opponent from making his own requests for manual counts. Since the manual recount statute cuts off a candidate's right to request a manual examination of ballots, a candidate who stays his request until the midnight hour may pin his opponent against the statutory deadline. ⁽³⁹⁾ Thus, by gaming the timing and location of recount requests under the selective dimple model, a candidate can maximize the count of dimple votes cast for him, while minimizing the number of dimple votes counted for his opponent.

C.

Prior to the supreme court's decision in Harris, the Division of Elections interpreted the statutory election system as creating a machine model. The decision, however, indicated that the selective dimple model is the proper vote counting scheme under the statutory election system. In Part III, therefore, I discuss whether the supreme court's decision constituted a post-election change in Florida's vote counting model, in derogation of the principles set forth in Roe v. Alabama, 68 F.3d 404 (11th Cir. 1995) ("Roe III"). In Part IV, I consider whether the selective dimple model that emerged from Harris infringes upon plaintiffs' rights in violation of the Fourteenth Amendment.III.

Plaintiffs contend that Harris materially altered Florida's vote counting model after the November 7 election. They argue that retroactively validating defective votes by judicial decree violates the rule established in Roe.

While federal courts generally do not intervene in "garden variety election disputes," our involvement is appropriate and necessary when "the election process itself reaches the point of patent and fundamental unfairness" indicating a violation of due process for which relief under 42 U.S.C. § 1983 is appropriate. Curry v. Baker, 802 F.2d 1302, 1315 (11th Cir. 1986) (internal citations omitted). The Supreme Court has held that "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." Reynolds v. Sims, 377 U.S. 533, 555, 84 S. Ct. 1362, 1378, 12 L. Ed. 2d. 506 (1964).

In Roe, we were presented with allegations that a post-election judicial interpretation of a state's election laws required the inclusion of theretofore invalid votes, which amounted to stuffing the ballot box. See Roe I, 43 F.3d at 581. An Alabama statute required a person voting by absentee ballot to execute an affidavit in the presence of a "notary public or other officer authorized to acknowledge oaths or two witnesses 18 years of age or older." Id. at 577, citing Ala. Code § 17-10-7 (1980). During a general election held on November 8, 1994, "between 1000 and 2000 absentee voters failed to properly complete their affidavits, either by failing to have their signatures notarized or by failing to have them witnessed by two people." Id. at 578. Pursuant to the applicable statute, those ballots were not counted - but were set aside as contested ballots. The election results in one race were particularly close - informal estimates placed the leading candidates "a mere 200 to 300 votes apart without counting the contested absentee ballots." Id. Two absentee voters, on behalf of themselves and others similarly situated, filed suit in state court seeking an order that the contested absentee ballots be counted. The court ordered that certain of the absentee ballots be counted, stating that "absentee ballots may not be excluded from being counted because of a lack of notarization or a lack of witnesses." Id. (emphasis in original). The court further ordered that the Secretary of State refrain from certifying the vote totals until the new count, including the contested absentee ballots, was forwarded to him. Id.

Larry Roe, on behalf of himself and other similarly situated Alabama voters, brought suit in the United States District Court for the Southern District of Alabama alleging that the counting of absentee ballots, in contravention of the state's past practice, violated the Fourteenth Amendment. The district court agreed, finding that "the past practice of the Alabama election officials prior to [the] general election has been to refrain from counting any absentee ballot that did not include notarization or the signatures of two qualified witnesses," that "the past practice of the Secretary of [the] State of Alabama has been to certify Alabama election results on the basis of vote counts that included absentee votes cast only by those voters who included affidavits with either notarization or the signatures of two qualified witnesses," and that the circuit court's order changed this past practice. Id. at 579. The district court ordered that the contested ballots be preserved and protected; that the Secretary refrain from certifying election results based on a vote count that included the contested absentee ballots; that Alabama's sixty-seven county election officials forward vote totals to the Secretary without counting the contested absentee ballots; and that the Secretary, upon receipt of those vote totals, certify the election results. Id.

Defendants appealed, and we certified the question to the Alabama Supreme Court: "WHETHER ABSENTEE BALLOTS THAT, ON THE ACCOMPANYING AFFIDAVIT ENVELOPE, FAIL TO HAVE TWO WITNESSES AND LACK PROPER NOTARIZATION . . . MEET THE REQUIREMENTS OF ALABAMA LAW . . . TO BE COUNTED IN THE NOVEMBER 8, 1994 GENERAL ELECTION." Roe I, 43 F.3d at 583. The Alabama Supreme Court answered in the affirmative, stating that the signature of the voter alone, if accompanied by the voter's address and reason for voting absentee, satisfies the statute's requirements. Roe v. Mobile County Appointment Bd., No. 1940461 (Ala. March 14, 1995). After receiving the supreme court's response, we remanded the case to the district court for a determination of whether, prior to and at the time of the November 8, 1994 general election, the practice in Alabama had been to reject or, conversely, to count absentee ballots whose envelope did not include the signature of either a notary public or two witnesses. Roe v. Alabama, 52 F.3d 300 (11th Cir. 1995) ("Roe II"). The district court found, after trial of the case, that the practice in Alabama prior to the November 8, 1994 election, had been uniformly to exclude ballots not in conformity with the literal requirements of the statute. Given this finding, the district court concluded that the plaintiffs were entitled to relief, for "to include the contested ballots in the vote totals would depreciate the votes of [the plaintiff class]" in violation of the Fourteenth Amendment. Roe III, 68 F.3d at 407. The district court entered a permanent injunction that, among other things, directed the Secretary of State to certify the results of the elections.

Defendants again appealed, arguing that the court should have given effect to the Supreme Court of Alabama's answer to the certified question. We noted in response that "the Alabama Supreme Court, in answering our question, construed an Alabama statute; the court did not, and was not called upon to, decide whether the counting of the contested ballots cast in the . . . election - in the face of Ala. Code § 17-10-4 and in the face of a uniform state-wide practice of excluding such ballots - infringed the [plaintiff] class' constitutional rights." Id. at 409. We affirmed the decision of the district court, confirming our conclusion in Roe I that such a post-election change in the applicable law "demonstrated fundamental unfairness." Roe I, 43 F.3d at 580.

As in Roe, the appropriate analysis in this case begins with an examination of Florida's past practice in tallying its election results. The past practice of Florida counties using machine-read ballots (whether they are optical scanning or punchcard ballots) has been to certify the machine tabulation of votes as the county's official vote count. In keeping with that practice, no counties in the November 7 election supplemented the machine counts with hand counts of undervoted ballots before submitting their results to the Secretary of State. If the machines were merely screeners ⁽⁴⁰⁾ on November 7 as the selective dimple model presumes, then the election officials in each county should have examined all undervoted ballots on the night of the election. That they did not do so is evidence that either the Florida Supreme Court changed the election law, or that county election officials were shirking their duties.

The interpretations of the election statutes promulgated by Florida election officials before the state supreme court's decision are also of paramount interest. The Secretary of State is the chief election officer of Florida, and it is her responsibility to "obtain and maintain uniformity in the application, operation, and interpretation of the election laws." ⁽⁴¹⁾ Fla. Stat. § 97.012(1) (2000).

Pursuant to section 106.23(2), ⁽⁴²⁾ the Division of Elections, a division within the Department of State, issued three advisory opinion letters on November 13, 2000, advocating the machine model for counting votes under the statutory system. The letters were written in response to requests asking the Division to define the meaning of "error in the vote tabulation" in the statutory manual recount provision. The Division stated that "'an error in the vote tabulation' means a counting error in which the vote tabulation system fails to count . . . properly marked marksense or properly punched punchcard ballots." Advisory Opinion Letter from L. Clayton Roberts, Director, Division of Elections, Nov. 13, 2000. Significantly, the Division opined that the "inability of a voting system[] to read an . . . improperly punched punch card ballot . . . is not an 'error in the vote tabulation.'" Id. Fla. Stat. § 106.23(2).

Apparently, however, state officials could not agree about the meaning of the phrase "error in the vote tabulation." Attorney General Robert Butterworth, in a letter to the Palm Beach County Canvassing Commission, took issue with the November 13 opinion issued by the Division of Elections. He noted in his letter that "the division's opinion is wrong is several respects," and stated that "where a ballot is so marked as to plainly indicate the voter's choice and intent, it should be counted as marked unless some positive provision of law would be violated." Letter from Robert A. Butterworth to Hon. Charles Burton, November 14, 2000. Insofar as Attorney General Butterworth's statement can be read to suggest that all ballots with undervoted ballots should have been examined on November 7, it is noteworthy that no county canvassing board member has, to my knowledge, been charged with neglect of duty under Fla. Stat. § 104.051 for failure to take such action. See Fla. Stat. § 104.051 ("Any official who willfully refuses or willfully neglects to perform his or her duties as prescribed by this election code is guilty of a misdemeanor of the first degree.").

The legislative history of the manual recount provision also indicates that it was added to ensure an accurate count of properly cast (as opposed to dimpled or otherwise mismarked) votes. The manual recount provision was enacted as part of the Voter Protection Act of 1989 to provide a remedy to candidates who believed the vote tabulating equipment was not working properly in a given county. The Senate Staff Analysis and Economic Impact statement on the legislation indicated that it was enacted, in part, in response to a problem in a prior election in which "an apparent software 'glitch' or error was responsible for an incident in Ft. Pierce when a machine would count the Democratic votes, but would not accept Republican ones." Bush v. Palm Beach County Canvassing Bd., Pet. For Cert. Resp. of Harris, p. 13 n.10, cert. granted (No. 00-836).

As the evidence shows, then, Harris interpreted the state election system in a way that was inconsistent with previous state practice. If this was a post-election changing of the rules, rather than merely an interpretation of an ambiguous vote counting model, such a change is fundamentally unfair in three ways. First, deciding after the election to count votes that do not satisfy requirements set forth before the election dilutes the votes of those who attended the polls and indicated their intent in accordance with the instructions. ⁽⁴³⁾ This is directly analogous to the violation in Roe. Cf. Roe I, 43 F.2d at 581.

Second, to the extent that Harris constitutes a change in election procedures, it creates a vote dilution problem more egregious than that in Roe. In addition to dilution caused by counting improperly executed ballots that nevertheless express a clear intent to cast a vote, Florida voters also suffer from dilution by the inevitable counting of markings on ballots that were not intended as votes. ⁽⁴⁴⁾ The wholly arbitrary standards for determining voter intent in various counties ensure the erroneous addition of countless non-votes to a candidate's tally. This bolsters plaintiffs' claim of a Roe-type violation, which dilutes the votes of bona fide voters in violation of the First and Fourteenth Amendments. ⁽⁴⁵⁾

Third, if Harris changed the definition of a "valid vote" after the running of statutory limitations period within which a candidate could ask for a manual recount, such a change would work fundamental unfairness. By the time the court's decision was announced on November 21, the time limit in which the candidates or their parties could request manual counts had elapsed. Had the candidates known that Florida's statutory election system allowed the selective mining of votes through its manual recount provision, they might have made use of the system to request that at least some of the 180,000 ballots containing non-votes in the presidential race be examined sometime before November 21. The court presumably recognized this problem when it offered to extend the time period for requesting manual counts. ⁽⁴⁶⁾ Harris, Nos. SC00-2346, SC00-2348 & SC00-2349.

I find plaintiffs' argument that the court retroactively changed the state's vote counting model extremely persuasive. Because of past practice, interpretations of state officials prior to Harris, and the legislative history, I believe that the Florida Supreme Court superimposed a new model onto the state's statutory election scheme. Because of this circuit's clear precedent in Roe, I would hold that the Florida Supreme Court unconstitutionally changed the election system after the election had taken place. This alone is reason to reverse.

Even if I am incorrect in assessing Harris as a post-election change in violation of Roe, plaintiffs' allegations that the selective dimple model itself is constitutionally infirm warrant a full analysis.

IV.

Florida law gives every qualified voter one vote in its statewide election of presidential electors. In counting those votes under the selective dimple model, however, it employs a county unit system which works to disenfranchise voters based on where they reside. As noted in my description of the selective dimple model, voters who express their intent to vote for President in a manner undetectable by a vote tabulating machine will have their votes counted only at the behest of a candidate or political party. The statutes provide no way for a voter, himself, to demand that his "dimple" or other marking be counted before the vote total is certified; he must wait for a qualified partisan proxy to do it for him. ⁽⁴⁷⁾ If no qualified proxy requests a manual count, the untabulated votes simply remain uncounted. The selective disenfranchisement caused by the selective dimple model implicates two similar but distinct fundamental rights: the right to vote and the right of freedom of association. These rights, embodied in the First Amendment, are enforced against the states by the Fourteenth Amendment. The Equal Protection Clause of the Fourteenth Amendment guarantees, as its name suggests, that no person shall be denied "equal protection of the laws." U.S. Const. amend. XIV, § 1. Thus, I first examine in Part A, Sections 1 and 2, whether the selective dimple model impermissibly classifies and discriminates against certain voters or groups of voters. I then turn in Part B to an analysis of the vote counting scheme under the Due Process Clause of the Fourteenth Amendment, which guarantees that no State "shall deprive any person of life, liberty, or property, without due process of law." Id. The concept of "liberty," as interpreted by the United States Supreme Court, includes a right to freedom of association. See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S. Ct. 1163, 1171, 2 L. Ed. 2d 1488 (1958) ("It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech."). My inquiry, therefore, focuses on whether the Florida vote counting scheme, as applied in this case, infringes upon plaintiffs' right of association in violation of the Due Process Clause.

A.

1.

Under the selective dimple model, if a candidate in a Florida statewide race is trailing his opponent by a small number of votes following the machine counts, his only chance to win is to mine for additional votes via manual counts. ⁽⁴⁸⁾ The candidate will turn, naturally, to those counties in which he believes he can make up the difference. As discussed in Part II.B.2, supra, in considering whether to ask for a manual count in a particular county, a candidate will consider (1) the percentage of the vote he has carried in the county thus far, (2) the size of the county, and (3) the political makeup of the decision-making body in the county. Thus, a candidate would, under the current system, be likely to ask for manual counts in large counties in which his party predominates.

These observations underscore the adversarial structure of the Florida scheme which allows candidates to play games with individual rights. The selective dimple model puts voters in no better a position than children in a schoolyard game yelling, "Pick me, pick me!" The candidates, as team captains, will only choose those who are sure to help them win. Smaller, less populated counties - like frail schoolchildren - have almost no chance of being picked. ⁽⁴⁹⁾ At the end of choosing teams, those who aren't chosen simply don't get to play. This scheme clearly contravenes the long-settled principle that "qualified citizens not only have a constitutionally protected right to vote, but also the right to have their votes counted." Duncan v. Poythress, 657 F.2d 691, 700 (5th Cir. Unit B 1981), citing Ex parte Yarbrough, 110 U.S. 651, 4 S. Ct. 152, 28 L. Ed. 274 (1884), and United States v. Mosley, 238 U.S. 383, 35 S. Ct. 904, 59 L. Ed. 1355 (1915). As Justice Douglas wrote in Gray v. Sanders, 372 U.S. 368, 379-80, 83 S. Ct. 801, 808-09, 9 L. Ed. 2d 821, L. Ed. 2d 821 (1963):

once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote - whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment. The concept of "we the people" under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications. The idea that every voter is equal to every other voter in his State, when he casts his ballot in favor of one of several competing candidates, underlies many [United States Supreme Court] decisions.The Florida vote counting model, as interpreted by the Florida Supreme Court, works to deprive voters of their right to vote based on their county of residence and thereby denies them equal protection of the laws. ⁽⁵⁰⁾

2.

In addition to facilitating discrimination against individuals on a geographical basis, the selective dimple model encourages wily candidates to fence out voters on the basis of their party affiliation. Plaintiffs claim that, as Bush voters, their vote has been diluted by the selective enfranchisement of dimple voters in heavily populated, predominately Democratic counties. Specifically, they allege that Vice President Gore and the Democratic Party requested and received manual counts in Volusia, Palm Beach, Broward, and Miami-Dade counties - all counties in which he received approximately six out of every ten machine-counted votes. His opponent, Governor Bush, did not request manual counts in any county. ⁽⁵¹⁾ I agree that the selective dimple model, as applied, is tailor-made for unconstitutional party-based discrimination.

"The right to form a party for the advancement of political goals means little if a party can be . . . denied an equal opportunity to win votes." Williams v. Rhodes, 393 U.S. 23, 31, 89 S. Ct. 5, 10-11, 21 L. Ed. 2d 24 (1968). Under the selective dimple model, the state encourages candidates to wield the manual count provision as a sword to cut down the strength of an opposing party's support. The game is best played by the candidate who is able to enfranchise scores of his own supporters while validating as few extra votes as possible for his opponent. Plainly, then, the vote counting scheme encourages candidates to discriminate between groups of voters - organized in county units - based on the predominant party affiliation of each county's voters.

The question is whether this gamesmanship works a constitutional injury not only to the individual voters who are not chosen for enfranchisement, but also to those groups of voters whose power is intentionally and systematically diluted by the selective validation of votes for an opposing party's candidate. Riddell v. National Democratic Party, 508 F.2d 770, 777 (5th Cir. 1975) ("Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents."). "The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination." Snowden v. Hughes, 321 U.S. 1, 8, 64 S. Ct. 397, 401, 88 L. Ed. 497 (1944); see also Gamza v. Aguirre, 619 F.2d 449, 453 (5th Cir. 1980). Such discrimination "may appear on the face of the action taken with respect to a particular class or person, or it may only be shown by extrinsic evidence showing a discriminatory design to favor one individual or class over another not to be inferred from the action itself." Snowden, 321 U.S. at 8, 64 S. Ct. at 401. Additionally, "the determination that particular conduct constitutes a constitutional deprivation rather than a lesser legal wrong depends on the nature of the injury, whether it was inflicted intentionally or accidentally, whether it is part of a pattern that erodes the democratic process or whether it is more akin to a negligent failure properly to carry out the state ordained electoral process and whether state officials have succumbed to 'temptations to control . . . elections by violence and by corruption.'" Gamza, 619 F.2d at 453.

The action taken in the instant case by Vice President Gore and the Democratic Party, in selecting heavily populated, predominately Democratic counties in which to request manual counts, evinces purposeful discrimination against voters who reside in non-Democrat-dominated counties. The injury inflicted upon his opponent's supporters is planned vote dilution - undoubtedly "a pattern that erodes the democratic process." This injury is certainly actionable, for "the right to associate with the political party of one's choice is an integral part of [First and Fourth Amendment] freedoms," Communist Party v. Whitcomb, 414 U.S. 441, 449, 94 S. Ct. 656, 662, 38 L. Ed. 2d 635 (1974), and purposeful, systematic disenfranchisement of a party's members interferes with the ability of the group to express its ideas as a whole.

Given the Florida Supreme Court's endorsement of what I have been calling the selective dimple model, I feel confident in saying that planned vote dilution by use of selective manual counts will not be an isolated event in Florida's statewide elections. ⁽⁵²⁾ Furthermore, that such action is advocated by the State in its statutory election system, and sanctioned when the vote totals are certified by the state Election Canvassing Commission is, I believe, sufficient to deem it state action for purposes of section 1983. Where there exists such a state sanctioned discriminatory scheme targeting a particular group of voters on the basis of their political association, relief under the equal protection clause is not only appropriate, but is required. See Snowden, 321 U.S. at 11, 64 S. Ct. at 402 ("Where discrimination is sufficiently shown, the right to relief under the equal protection clause is not diminished by the fact that the discrimination relates to political rights."); see also Shakman v. Democratic Org., 435 F.2d 267, 270 (7th Cir. 1970) ("The equal protection clause secures from invidious official discrimination the voter's interest in a voice in government of equal effectiveness with other voters.").

B.

In addition to encouraging unlawful discrimination against voters based on their county of residence or political affiliation, it is clear that Florida's vote counting scheme for statewide elections unconstitutionally burdens a fundamental right secured by the Constitution: the freedom of association. "The right of individuals to associate for the advancement of political beliefs . . . ranks among our most precious freedoms." Williams v. Rhodes, 393 U.S. 23, 30, 89 S. Ct. 5, 10, 21 L. Ed. 2d 24 (1968). As explained above, the right to freedom of association is guaranteed by the First Amendment and protected against state impairment by the Due Process Clause of the Fourteenth Amendment. See Id. at 30-31.

On November 7, plaintiffs expressed their beliefs about who should hold the office of President of the United States. Similarly, by voting in the national election, all Bush voters expressed the same sentiment. In other words, plaintiffs and Bush voters attempted to associate collectively for the advancement of the belief that George W. Bush should be President of the United States. The right of association protects this activity of "engaging in association for the advancement of beliefs and ideas." NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S. Ct. 1163, 1171, 2 L. Ed. 2d 1488 (1958).

By counting the dimpled votes in some but not all counties, the state of Florida infringes upon the plaintiffs' right, and the right of all voters, to associate for the advancement of their favored political candidate. See Sowards v. Loudon County, Tenn., 203 F.3d 426, 432 (6th Cir. 2000) (stating "support of a political candidate falls within the scope of the right of political association") and Mariani v. United States, 212 F.3d 761, 771 (3d Cir. 2000) (stressing "the right to association through support of the candidate of one's choice"). ⁽⁵³⁾

Consider, for example, a Bush voter in Brevard County whose vote was counted by the vote tabulating machine; his right to political association is diminished when other votes for Bush are not counted. Just as plaintiffs' freedom of association "encompasses 'the right to associate with the political party of one's choice,'" see Buckley v. Valeo, 424 U.S. 1, 15, 96 S. Ct. 612, 633, 46 L. Ed. 2d 659 (1976), plaintiffs' right also entails the freedom to associate with like-minded voters in support of a candidate of their choice.

Once it decided that dimples were valid votes, but that those votes would be counted only in counties selected by the candidates, the Florida Supreme Court's decision disenfranchised dimple voters in the remaining counties and thereby trampled the right of association enjoyed by plaintiffs and all Florida voters. The selective dimple model inhibits voters from demonstrating their true electoral strength. By interfering with plaintiffs' ability to associate with other Bush voters so as to "enhance their political effectiveness as a group," see Patriot Party of Allegheny Cty. v. Allegheny County Dep't of Elections, 95 F.3d 253, 262 (3d Cir. 1996) (citing Anderson v. Celebrezze, 460 U.S. 780, 794, 103 S. Ct. 1564, 1572-73, 75 L. Ed. 2d 547 (1983)), the selective dimple model denies plaintiffs' and other Bush voters the fruits of their association, to wit: their political impact. ⁽⁵⁴⁾ See Republican Party of Conn. v. Tashjian, 770 F.2d 265, 278 (2d Cir. 1985) (explaining "the Williams Court intimated that a statutory regime denying a group the fruit of their association - political impact - runs afoul of the first amendment no less than one precluding association itself" (quoting L. Tribe, American Constitutional Law 779 (1978)).

"Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny." NAACP v. Alabama ex rel Patterson, 357 U.S. 449, 460, 78 S. Ct. 1163, 1171, 2 L. Ed. 2d 1488 (1958). As such, this constitutional right may be limited only when "a compelling state interest in the regulation of a subject within the State's constitutional power to regulate exists." NAACP v. Button, 371 U.S. 415, 438, 83 S. Ct. 328, 341, 9 L. Ed. 2d 405 (1963); see also Williams, 393 U.S. at 31, 89 S. Ct. at 11. I can find no compelling interest in Florida's vote-counting scheme that counts some valid votes but not others. See Williams, 393 U.S. at 32-33, 89 S. Ct. at 11 (explaining that due process requires that the state accomplish its goal of administering elections narrowly and fairly to avoid diluting these fundamental liberties"); see also Riddell v. National Democratic Party, 508 F.2d 770, 776-77 (5th Cir. 1975) (citing Kusper v. Pontikes, 414 U.S. 51, 57, 94 S. Ct. 303, 307, 38 L. Ed. 2d 260 (1973) (stating "'the states may not infringe upon basic constitutional protections' and 'unduly restrictive state election laws may so impinge upon freedom of association as to run afoul of the First and Fourteenth Amendments'")). Accordingly, I would hold that the state of Florida's current election scheme infringes upon plaintiffs' right to association in violation of the First and Fourteenth Amendments.

V.

A.

The majority holds that plaintiffs have failed to demonstrate an irreparable injury, and thus we need not consider the likelihood of success on the merits. This holding can mean one of two things: either the majority is contending that plaintiffs have suffered no injury, or that the injury that has been suffered is reparable. We consider each of these possibilities in turn.

If the majority is resting its decision on the ground that plaintiffs have suffered no injury, then it has agreed with the argument of the appellees and the Attorney General that an injury does not exist in this case because plaintiffs voted for the putative winner, George W. Bush. In other words, unless a voter cast his vote for a losing candidate, the voter cannot be found to have suffered any cognizable constitutional injury - the existence of his constitutional right is dependent upon the outcome of the election. It defies common sense, however, to suggest that a voter has no cause of action for the debasement of his vote, and the consequent denial of the equal protection of the laws, unless his candidate has lost the election.

Once it is clear that plaintiffs' constitutional rights are not dependent upon the outcome of the election, the question becomes whether and when plaintiffs suffered any redressable injury. I contend that the injury to the voters in the instant case occurred once the time limit for requesting manual recounts had expired, and at least one but not all counties had certified results containing manual recounts conducted pursuant to § 102.166. ⁽⁵⁵⁾ It was at that moment we could be sure that some voters had been disenfranchised, while others had suffered a debasement of their vote by the selective addition of dimpled votes to the total. Thus, it is clear under federal law and under the facts of this case that plaintiffs have suffered a constitutional injury.

Perhaps, then, the majority did not mean to say that plaintiffs suffered no injury, but that whatever injury they may have suffered was not irreparable. It was posited to the court during oral argument that even if plaintiffs had been injured, they still had adequate redress in the state courts. ⁽⁵⁶⁾ This is a wholly fallacious argument. A voter may bring a contest suit in state court on the ground that legal votes were excluded or illegal votes included, but must show that such action was sufficient to "change or place in doubt the result of the election." Fla. Stat. § 102.168(3)(c). Clearly, then, a Bush voter could not maintain a contest suit - he could neither allege nor establish that the inclusion of other legal votes, or the exclusion of illegal votes, would change the outcome of the election. ⁽⁵⁷⁾ The state remedy, therefore, is no remedy at all for voters who have suffered constitutional injury while attempting to vote for the winning candidate. ⁽⁵⁸⁾

Not only is plaintiffs' injury not redressable by the state courts, but it continues to compound itself by the day. The uncertainty regarding the integrity of the presidential election in Florida has cast a pall of illegitimacy over the entire process. If the federal constitutional principle is that plaintiffs have a cause of action without having to show that their candidate lost, but should have won, there is no other remedy available. The constitutional injury has been suffered and is not ameliorated by inaction. Plaintiffs have no viable recourse in the state courts. The constitutional question is before us, and time is of the essence.

B.

This case is before our court as an appeal of a district court order denying a motion for a preliminary injunction. Had nothing of relevance transpired since the district court issued its order, we would simply ask whether, given the record before it, the district court abused its discretion in denying relief. See Panama City Med. Diagnostic v. Williams, 13 F.3d 1541, 1545 (11th Cir. 1994). ⁽⁵⁹⁾ This is the track the majority chooses to take.

However, many events of relevance have taken place since the district court made its ruling. This court has been apprised of these events by the parties' supplemental filings and oral argument. Most important of these subsequent events is the Florida Supreme Court's definitive interpretation of the Florida system of conducting state-wide elections: Florida employs the selective dimple model. ⁽⁶⁰⁾

This interpretation has crystalized plaintiffs' claims into pure questions of law. This court can and should determine - without the necessity of further proceedings in the district court - whether the selective dimple model has deprived plaintiffs of fundamental constitutional rights. Instead, the majority elects to act as if the situation had not changed, as if we had not asked to be updated on ongoing developments, and as if there is no constitutional violation and injury at all.

C.

When a case is on appeal from the denial of a preliminary injunction, it may be reviewed on the merits "if a district court's ruling rests solely on a premise as to the applicable rule of law, and the facts are established or of no controlling relevance." Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 757, 106 S. Ct. 2169, 2177, 90 L. Ed. 2d 779 (1986), rev'd on other grounds by Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992); Donovan v. Bierwirth, 680 F.2d 263, 270 (2d Cir. 1982) (ruling on the merits of an injunction, in an appeal from the grant of a preliminary injunction, because the "quarrel is over the legal standard and its application to facts not seriously in dispute"). In the instant case, intervening events have narrowed the issues in this appeal to pure questions of constitutional law.

To obtain a permanent injunction, as opposed to a preliminary injunction, plaintiffs must show not just "a substantial likelihood of success on the merits" - the first of four requirements for a preliminary injunction - but must demonstrate actual success on the merits. See Amoco Prod. Co. v. Village of Gambell, Alaska, 480 U.S. 531, 546 n.12, 107 S. Ct. 1396, 1404 n.12, 94 L. Ed. 2d 542 (1987). My analysis reveals, beyond any doubt, that the state of Florida has infringed plaintiffs' rights under the First and the Fourteenth Amendments. Moreover, there can be no doubt that plaintiffs' injury is real and ongoing. Accordingly, there is no need to remand this case to the district court for further proceedings. See Clements Wire & Mfg. Co. v. NLRB, 589 F.2d 894 (5th Cir. 1979) (ruling on the merits of a claim, even though the appeal related only to a preliminary injunction, where it was clear that one side could not prevail); ⁽⁶¹⁾ Illinois Council on Long Term Care v. Bradley, 957 F.2d 305, 310 (7th Cir. 1992) ("Since plaintiffs cannot win on the merits, there is no point in remanding the case for further proceedings."). To remand now is a waste of judicial energy and resources and withholds from plaintiffs the relief they are entitled to receive at this very moment. See Thornburgh, 476 U.S. at 757, 106 S. Ct. at 2177 (holding that a court of appeals' usual limitation to review of a preliminary injunction for abuse of discretion "is a rule of orderly judicial administration, not a limit on judicial power"); Doe v. Sundquist, 106 F.3d 702, 707 (6th Cir. 1997) ("The sort of judicial restraint that is normally warranted on interlocutory appeals does not prevent us from reaching clearly defined issues in the interest of judicial economy.").

I would direct the district court to enjoin the Secretary of State and/or Elections Canvassing Commission to issue amended vote certifications under Fla. Stat. § § 102.121 and 103.011 that do not contain the results of manual recounts conducted in response to a candidate or political party's request under Fla. Stat. § 102.166 (namely Volusia, Broward, Miami-Dade and Palm Beach Counties). I would further enjoin the Secretary of State and/or the Elections Canvassing Commission from issuing any future certification that includes manual recounts requested by a candidate or political party in select counties pursuant to Fla. Stat. § 102.166.

I respectfully dissent.

BIRCH, Circuit Judge, dissenting; in which TJOFLAT and DUBINA, Circuit Judges, join:

While I concur in the dissenting opinions by my colleagues, Judges Tjoflat, Dubina and Carnes, my concern about the constitutional deprivations alleged in these cases is focused on the lack of standards or guiding principles in the Florida manual recount statute. Florida's statutory election scheme envisions hand recounts to be an integral part of the process, providing a check when there are "errors in the vote tabulation which could affect the outcome of the election." See Fla. Stat. Ann. § 102.166(5). The 1989 Florida legislature, however, abdicated its responsibility to prescribe meaningful guidelines for ensuring that any such manual recount would be conducted fairly, accurately, and uniformly. While Florida's legislature was unquestionably vested with the power under Article II, Section [One of the United States Constitution to devise its own procedures for selecting the state's electors, it was also required to ensure that whatever process it established comported with the equal protection and due process requirements of the Fourteenth Amendment to that same Constitution. ⁽⁶²⁾ Other states, such as Indiana, have provided clear and definitive standards under which manual recounts are to be conducted. See Ind. Code § 3-12-1-9.5 (providing in part that chads that have been pierced count as valid votes, but those with indentations that are not separated from the ballot card do not). Absent similar clear and certain standards, Florida's manual recount scheme cannot pass constitutional muster.

Moreover, Congress, to which the electors from Florida will be ultimately certified, has established a safe harbor, 3 U.S.C. § 5, that requires that such rules and standards be established before the election. Because the 1989 Florida legislature has, in my view, abdicated its responsibility to formulate constitutionally clear and objective statutory rules and standards for the election process in Florida, it has disenfranchised voters throughout the state. ⁽⁶³⁾ The well-intended and responsible county canvassing boards across the state have been given, in legislative terms, an unfunded mandate discern the voter's intent without any objective statutory instructions to accomplish that laudable goal. The effect of such an unguided, standardless, subjective evaluation of ballots to ascertain voter intent is to cause votes to be counted (or not to be counted) based only upon the disparate and unguided subjective opinion of a partisan (two members are elected in partisan voting) canvassing board. ⁽⁶⁴⁾ Since their opinions as to voter intent are standardless no meaningful judicial review is possible by a Florida court. Accordingly, by finding an abridgement to the voters' constitutional right to vote, irreparable harm is presumed and no further showing of injury need be made. ⁽⁶⁵⁾

It has been said that to err is human--- and humans vote. Thus, it should not be surprising that the voting process is subject to error. However, as demonstrated in the recent Presidential election, the frequency, magnitude and variety of error associated with the exercise of this sacred right of citizenship is at once astounding and deeply troubling. Morever, the media's focus on the campaign preceding November 7, having been eclipsed by its subsequent frenzy, has left the average citizen at the least skeptical, and at the worst cynical, about our democratic institutions. Morever, in its present incarnation, the post-election debacle that brings these cases to us for resolution may be cynically viewed by some as depicted by Congresswoman Shirley Chisholm:

Politics is a beautiful fraud that has been imposed on the people for years, whose practitioners exchange gilded promises for the most valuable thing their victims own: their votes. And who benefits the most? The lawyers.

Shirley Anita Chisholm, Unbought and Unbossed, 1970. To respond in that way would be a mistake.

While our nation's citizens have every right to be concerned, exasperated, fatigued and even cynical, it is my fervent hope that from these events they will come to understand, if not appreciate, the role of government's Third Branch in the life of our precious democracy. Our basic function in this society is to provide a forum in which disputes both great and small (although to those involved, a dispute is never "small") can be decided in an orderly, peaceful manner; and with a high level of confidence in the outcome. Lawyers, as officers of the court, are integral to that process in our adversarial system.

The right to vote---particularly for the office of President of the United States, our Commander-In-Chief, ---is one of the most central of our fundamental rights in a democracy. ⁽⁶⁶⁾Accordingly, any dispute that has at its core the legitimacy of a presidential election and impacts upon every citizen's right to vote, deserves the most careful study, thought and wisdom that we can humanly bring to bear on the issues entrusted to us. Thus, I feel compelled to attest to the fact that my brother and sister judges have embraced this case with a sense of duty, concern, and conscientious hard work that is worthy of the issues before us.

Aware of the importance of these cases ⁽⁶⁷⁾ and the urgency attendant to the issues presented, we decided to take these disputes en banc that is, before the entire court of twelve judges. ⁽⁶⁸⁾ Moreover, utilizing a procedure that we normally employ in death penalty cases, we arranged through the clerks of the district courts involved to have copies of all filings there "lodged" (i.e., copies provided) with us contemporaneously. ⁽⁶⁹⁾ Hence, we have been able to review and study the progress of the factual and legal matters presented in these cases from their inception. Accordingly, long before the anticipated notices of appeal were filed, formally bringing them to us, we were about the study and review of the legal issues to be resolved. Thus, the reader of our opinions ⁽⁷⁰⁾ in this case should understand that our time for consideration has been considerably longer than it might appear at first blush.

Just as the electorate was divided in their good faith effort to cast their votes for our nation's chief executive, the members of this court have discharged their duty to interpret the law in the context of this case in an unbiased and sincere effort. Inevitably the pundits will opine that a judge's decision is somehow linked to the political affiliation of the President that appointed the judge. While we at all levels of the judiciary have come to expect this observation we continue to regret that some "think" that is so. It may be true that a judge's judicial philosophy may reflect, to some degree, the philosophy of the appointing President --- not a surprising circumstance --- but to assume some sort of blind, mindless, knee-jerk response based on the politics of a judge's appointer does us and the rule of law a grave injustice. More importantly it is just wrong.

I would hope that a careful and thoughtful review of the opinions of my brothers and sisters would dispel any suggestion that their views on the important issues before us are anything but the result of days of careful study and thoughtful analysis because these opinions are nothing less. We have done our duty. I am proud to be associated with my judicial colleagues that have been called upon to discharge their respective constitutional obligations, albeit reluctantly both on this court and the many other state and federal courts involved. Indeed these recent events have been a civics lesson for some particularly the young; but they have also been a reminder that our nation's system of governance has weathered the test of time and tumult; the old three-legged stool ⁽⁷¹⁾ still stands erect and with sufficient strength to support the hopes and dreams of our nation's citizens.

The revered and quotable jurist, Learned Hand, once observed: "The spirit of liberty is the spirit which is not too sure that it is right . . ." ⁽⁷²⁾

While not "right" about many things, I am confident that we have given these matters the attention they justly deserve and trust that, at least, we have laid the groundwork for an informed decision by the justices of the United States Supreme Court should they exercise their judgment to hear this case. It is my hope that they do. We have done our best so that they can do their best.

DUBINA, Circuit Judge, dissenting, in which TJOFLAT and BIRCH, Circuit Judges join:

I agree with the majority's disposition of the issues of abstention, res judicata, collateral estoppel, and mootness. I also join and concur fully in the dissenting opinions filed by Judges Tjoflat, Birch, and Carnes. I dissent from the disposition of the remaining issues discussed in the majority's opinion. Specifically, I disagree with the notion that we cannot convert the preliminary injunction and reach the merits of this case. See Thornburgh v. American College of Obstetricians & Gynecologists, 467 U.S. 747 (1986).

As to the merits of this case, the legal principles set forth in the cases of Moore v. Ogilvie, 394 U.S. 814, 23 L. Ed. 2d 1, 89 S. Ct. 1493 (1969), and Roe v. Alabama, 43 F.3d 574 (11th Cir. 1995), govern. Based on these principles, I would reverse the judgment of the district court in this case.

CARNES, Circuit Judge dissenting, in which TJOFLAT, BIRCH and DUBINA, Circuit Judges, join:

For the reasons set out in my opinion in Siegel v. Lepore, No. 00-15981, I dissent.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 00-15981

________________________

D. C. Docket No. 00-9009

NED L. SIEGEL,

GEORGETTE SOSA DOUGLAS, et al.,

Plaintiffs-Appellants,

versus

THERESA LEPORE,

CHARLES E. BURTON, et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(December 6, 2000)

Before ANDERSON, Chief Judge, TJOFLAT, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

This is an appeal from the denial of a preliminary injunction.

The Republican candidates for the offices of President and Vice President of the United States, along with several registered Florida voters, filed suit in federal court in Miami, seeking to enjoin four Florida counties from conducting manual recounts of ballots cast for President of the United States in the November 7, 2000, election. The district court denied Plaintiffs' request for preliminary injunctive relief, and Plaintiffs appeal. For the reasons stated below, we affirm.

I.

On November 7, 2000, Florida voters cast ballots for several offices, including votes for the twenty-five electors for President and Vice-President of the United States. The following day, the Division of Elections for the State of Florida reported that the Republican Party presidential ticket received 2,909,135 votes, and the Democratic Party presidential ticket received 2,907,351 votes, for a margin of difference of 1,784, or 0.0299% of the total Florida vote.

Under Florida law, county canvassing boards are responsible for determining the number of votes cast for each candidate. See Fla. Stat. § 102.141. If a candidate for office is defeated by one-half of one percent or less of the votes cast for such office, the canvassing board must order a recount. See id. § 102.141(4). Pursuant to this statute, because the Presidential vote returns reflected that the Democratic ticket was defeated by less than one-half of one percent, the canvassing boards conducted automatic recounts of the votes. After the automatic recounts, the Republican ticket retained the majority of votes, although by a slimmer margin. Under Florida law, a manual recount may be requested by any candidate whose name appeared on the ballot, a political committee that supports or opposes an issue that appeared on the ballot, or a political party whose candidates' names appeared on the ballot. See Fla. Stat. § 102.166(4)(a). Such a request must be filed with the canvassing board within 72 hours after midnight of the date the election was held, or before the canvassing board has certified the challenged results, whichever is later. See id. § 102.166(4)(b). The canvassing board may, but is not required to, grant the request. See id. § 102.166(4)(c); Broward County Canvassing Bd. v. Hogan, 607 So. 2d 508, 510 (Fla. Dist. Ct. App. 1992) ("The statute clearly leaves the decision whether or not to hold a manual recount of the votes as a matter to be decided within the discretion of the canvassing board."). The statutory manual recount provision applies to all Florida counties. Therefore, the procedure for requesting a manual recount is the same in all counties, although the decision of whether to conduct a manual recount would, of course, be made separately by each county's canvassing board.

Once authorized by a county canvassing board, a manual recount must include "at least three precincts and at least 1 percent of the total votes cast for such candidate." Id. § 102.166(4)(d). The person requesting the recount chooses three precincts to be recounted, and, if other precincts are recounted, the canvassing board chooses the additional precincts. See id. If the results of the manual recount indicate "an error in the vote tabulation which could affect the outcome of the election, the county canvassing board shall: (a) Correct the error and recount the remaining precincts with the vote tabulation system; (b) Request the Department of State to verify the tabulation software; or (c) Manually recount all ballots." Id. § 102.166(5).

Florida law specifies the procedures for a manual recount. Section 102.166(7) of the Florida Statutes provides that:

(a) The county canvassing board shall appoint as many counting teams of at least two electors as is necessary to manually recount the ballots. A counting team must have, when possible, members of at least two political parties. A candidate involved in the race shall not be a member of the counting team.

(b) If a counting team is unable to determine a voter's intent in casting a ballot, the ballot shall be presented to the county canvassing board for it to determine the voter's intent.

In this case, the Florida Democratic Party filed requests for manual recounts in Broward, Miami-Dade, Palm Beach, and Volusia Counties on November 9, 2000, within the 72-hour statutory deadline. The stated reasons for the requests included the closeness of the statewide race and a concern that the vote totals might not reflect the true will of Florida voters. The apparent practical effect of a manual recount is that some ballots which were unreadable by machine due, for example, to voters' failure to mark or punch the ballots in a machine-legible fashion, might be read by human counters; and these votes could be added to the totals for each candidate.

II.

On November 11, 2000, registered voters Ned L. Siegel from Palm Beach County, Georgette Sosa Douglas from Broward County, Gonzalo Dorta from Miami-Dade County, Carretta King Butler from Volusia County, Dalton Bray from Clay County, James S. Higgins from Martin County, and Roger D. Coverly from Seminole County, along with the Republican candidates for President and Vice-President, George W. Bush and Richard Cheney (collectively "Plaintiffs"), filed a Complaint and a Motion for a Temporary Restraining Order and Preliminary Injunction in the district court for the Southern District of Florida.

Plaintiffs sued members of the county canvassing boards of Volusia, Palm Beach, Broward, and Miami-Dade Counties. ⁽⁷³⁾ Plaintiffs' Complaint alleged that the manual recounts violate the Fourteenth Amendment's guarantees of due process and equal protection, and deny and burden the First Amendment's protection of votes and political speech.

Plaintiffs' prayer for relief in their Complaint included the following:

(a) Declaring that Defendants may not subject any vote totals to manual recounts;

(b) In the alternative, declaring that Florida Statute § 102.166(4) is unconstitutional to the extent it does not limit the discretion of Defendants to conduct manual recounts in this case;

(c) Declaring that Defendants should certify and release forthwith all vote totals that have been the subject of two vote counts since November 7, 2000;

(d) Declaring that the form of ballot used in Palm Beach County was valid;

(e) Declaring that any ballot punched or marked for two Presidential candidates not previously counted cannot now be counted;

(f) Consolidating or removing to this Court any and all actions filed across the State of Florida purporting to challenge the results of the November 7 statewide election or otherwise delay the certification and release of those results; and

(g) Granting such other and further relief as this Court shall deem just and proper.

(Complaint at 16-17.)

The Motion for a Temporary Restraining Order and Preliminary Injunction which Plaintiffs filed with their Complaint asked, inter alia, that the district court prohibit the county canvassing boards from proceeding with manual recounts of the November 7th election results. Like the Complaint, this motion contended that the manual recounts violate the First Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

The district court heard oral argument on the motion on November 13, 2000, and Plaintiffs' request for a preliminary injunction was denied. On November 14, 2000, Plaintiffs filed a notice of appeal. ⁽⁷⁴⁾

During the pendency of this appeal, several Florida cases were appealed to the Florida Supreme Court. In these cases, some plaintiffs challenged Florida Secretary of State Katherine Harris's decision to refuse to accept the results of manual recounts submitted by county canvassing boards after the statutory deadline of 5:00 p.m. on November 14, 2000. On November 21, 2000, in the consolidated cases of Palm Beach County Canvassing Bd. v. Harris, Volusia County Canvassing Bd. v. Harris, and Florida Democratic Party v. Harris, the Supreme Court of Florida decided that Florida Secretary of State Harris must accept the late-reported results of manual recounts from these counties submitted by the evening of November 26, 2000. The Florida Supreme Court expressly stated that neither party had raised as an issue on appeal the constitutionality of Florida's election laws, and it did not address federal constitutional issues in its opinion. ⁽⁷⁵⁾

On appeal, Plaintiffs filed an Emergency Motion for an Injunction Pending Appeal, asking this Court to prohibit the county canvassing board Defendants from proceeding with manual ballot recounts. This motion was denied without prejudice on November 17, 2000. Among other things, we then said:

Both the Constitution of the United States and 3 U.S.C. § 5 indicate that states have the primary authority to determine the manner of appointing Presidential Electors and to resolve most controversies concerning the appointment of Electors. The case law is to the same effect, although, of course, federal courts may act to preserve and decide claims of violations of the Constitution of the United States in certain circumstances, especially where a state remedy is inadequate. In this case, the State of Florida has enacted detailed election dispute procedures. These procedures have been invoked, and are in the process of being implemented, both in the form of administrative actions by state officials and in the form of actions in state courts, including the Supreme Court of Florida. It has been represented to us that the state courts will address and resolve any necessary federal constitutional issues presented to them, including the issues raised by Plaintiffs in this case. If so, then state procedures are not in any way inadequate to preserve for ultimate review in the United States Supreme Court any federal questions arising out of such orders.

Order Denying Plaintiffs' Emergency Motion for Injunction Pending Appeal, Touchston v. McDermott, No. 00-15985 (Nov. 17, 2000) (citations omitted).

Plaintiffs moved this Court to expedite the underlying appeal, which motion we granted. This case is now before us on the appeal of the district court's denial of Plaintiffs' motion for a preliminary injunction. Plaintiffs ask this Court either to reverse the district court's decision, enjoin the canvassing board Defendants from conducting manual recounts or certifying election results that include manual recounts, or order the deletion and/or non-inclusion of final vote tabulations that reflect the results of manual recounts. ⁽⁷⁶⁾

This Court has carefully considered Plaintiffs' appeal, as well as the other documents filed, and has conferred en banc on numerous occasions. We heard oral argument on December 5, 2000. Recognizing the importance of a resolution to this case, a prompt decision on the appeal is required.

III.

We first consider whether Rooker-Feldman bars our exercise of subject matter jurisdiction over Plaintiffs' claims.

The Rooker-Feldman doctrine provides that federal courts, other than the United States Supreme Court, have no authority to review the final judgments of state courts. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486, 103 S. Ct. 1303, 1317 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S. Ct. 149, 150 (1923). The doctrine extends not only to constitutional claims presented or adjudicated by a state court, but also to claims that are "inextricably intertwined" with a state court judgment. Feldman, 460 U.S. at 482 n.16, 103 S. Ct. at 1315 n.16; Dale v. Moore, 121 F.3d 624, 626 (11th Cir. 1997). A federal claim is inextricably intertwined with a state court judgment "if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it." Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25, 107 S. Ct. 1519, 1533 (1987) (Marshall, J., concurring).

In light of the United States Supreme Court's decision vacating the Florida Supreme Court's November 21, 2000, decision, it is unclear at the moment that any final judgments giving rise to Rooker-Feldman concerns now exist. See Bush v. Palm Beach County Canv. Bd., No. 00-836 (U.S. Dec. 4, 2000). No party has called to our attention any final judgments in the Florida state courts upon which a Rooker-Feldman bar reasonably could be based as to these Plaintiffs. ⁽⁷⁷⁾ Thus, we conclude that Rooker-Feldman does not bar Plaintiffs from bringing these particular constitutional challenges to the implementation of Florida's manual recount provision.

Defendants Broward, Palm Beach, and Volusia County Canvassing Boards also argue that this case is moot because the manual recounts have been completed and the boards have filed their certified vote tabulations with the Elections Canvassing Commission. However, we conclude that this case is not moot.

Article III of the Constitution limits federal court jurisdiction to live cases or controversies, and the "case-or-controversy" requirement "subsists through all stages of federal judicial proceedings, trial and appellate." Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S. Ct. 1249, 1253 (1990). This Court has held that "[a] claim for injunctive relief may become moot if: (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Reich v. Occupational Safety & Health Review Comm'n, 102 F.3d 1200, 1201 (11th Cir. 1997).

We conclude that neither of these elements is satisfied in this case. The Democratic candidate, Vice President Gore, and others are currently contesting the election results in various lawsuits in numerous Florida state courts. There are still manual recount votes from at least Volusia and Broward Counties in the November 26th official election results of the Florida Secretary of State. ⁽⁷⁸⁾ In view of the complex and ever-shifting circumstances of the case, we cannot say with any confidence that no live controversy is before us. ⁽⁷⁹⁾

IV.

Defendants argue that we should abstain from hearing this case under Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098 (1943), or under Railroad Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643 (1941). We conclude that abstention is not appropriate in this case.

The Burford abstention doctrine allows a federal court to dismiss a case only if it presents difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar, or if its adjudication in a federal forum would disrupt state efforts to establish a coherent policy with respect to a matter of substantial public concern. See Boyes v. Shell Oil Prods. Co., 199 F.3d 1260, 1265 (11th Cir. 2000) (citing New Orleans Pub. Serv., Inc. v. Council of the City of New Orleans, 491 U.S. 350, 361, 109 S. Ct. 2506, 2514 (1989)). A central purpose furthered by Burford abstention is to protect complex state administrative processes from undue federal interference. See New Orleans Pub. Serv., 491 U.S. at 362, 109 S. Ct. at 2515. The case before us does not threaten to undermine all or a substantial part of Florida's process of conducting elections and resolving election disputes. Rather, Plaintiffs' claims in this case target certain discrete practices set forth in a particular state statute. Further, Burford is implicated when federal interference would disrupt a state's effort, through its administrative agencies, to achieve uniformity and consistency in addressing a problem. See, e.g., Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 727-28, 116 S. Ct. 1712, 1727 (1996). This case does not threaten to undermine Florida's uniform approach to manual recounts; indeed, the crux of Plaintiffs' complaint is the absence of strict and uniform standards for initiating or conducting such recounts. Finally, we note that Burford abstention represents an "extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it." County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188, 79 S. Ct. 1060, 1063 (1959). We do not believe that the concerns raised by Defendants in this case justify our abstention under this narrow doctrine.

Perhaps the most persuasive justification for abstention advanced by Defendants is based on Pullman, 312 U.S. 496, 61 S. Ct. 643; however, we conclude that abstention under this doctrine would not be appropriate. Under the Pullman abstention doctrine, a federal court will defer to "state court resolution of underlying issues of state law." Harman v. Forssenius, 380 U.S. 528, 534, 85 S. Ct. 1177, 1181 (1965). Two elements must be met for Pullman abstention to apply: (1) the case must present an unsettled question of state law, and (2) the question of state law must be dispositive of the case or would materially alter the constitutional question presented. See id. at 534, 85 S. Ct. at 1182. The purpose of Pullman abstention is to "avoid unnecessary friction in federal-state functions, interference with important state functions, tentative decisions on questions of state law, and premature constitutional adjudication." Id. Because abstention is discretionary, it is only appropriate when the question of state law can be fairly interpreted to avoid adjudication of the constitutional question. See id. at 535, 85 S. Ct. at 1182.

Plaintiffs claim that Florida's manual recount provision is unconstitutional because the statute does not provide sufficient standards to guide the discretion of county canvassing boards in granting a request for a manual recount or in conducting such a recount. There has been no suggestion by Defendants that the statute is appropriately subject to a more limited construction than the statute itself indicates.

Our conclusion that abstention is inappropriate is strengthened by the fact that Plaintiffs allege a constitutional violation of their voting rights. In considering abstention, we must take into account the nature of the controversy and the importance of the right allegedly impaired. See Edwards v. Sammons, 437 F.2d 1240, 1243 (5th Cir. 1971) (citing, as examples of cases where the Supreme Court referred to the nature of the right involved in upholding a refusal to abstain, Harman, 380 U.S. at 537, 85 S. Ct. at 1183 (voting rights); Griffin v. County Sch. Bd. of Prince Edward County, 377 U.S. 218, 84 S. Ct. 1226 (1964) (school desegregation); Baggett v. Bullitt, 377 U.S. 360, 84 S. Ct. 1316 (1964) (First Amendment rights)). Our cases have held that voting rights cases are particularly inappropriate for abstention. See Duncan v. Poythress, 657 F.2d 691, 697 (5th Cir. Unit B 1981) (stating that while an alleged denial of voting rights does not preclude federal abstention, Supreme Court precedent indicates that a federal court should be reluctant to abstain when voting rights are at stake); Edwards, 437 F.2d at 1244 (stating the general rule that abstention is not appropriate "in cases involving such a strong national interest as the right to vote"). In light of this precedent, the importance of the rights asserted by Plaintiffs counsels against our abstention in this case; although, as discussed below, we are mindful of the limited role of the federal courts in assessing a state's electoral process.

We therefore conclude that abstention is not appropriate.

V.

This is an appeal from the denial of a preliminary injunction. Plaintiffs state two main claims. First, Plaintiffs argue that Florida's manual recount scheme, and particularly Fla. Stat. § 102.166(7), is unconstitutional because it contains no standards for when a ballot not read by the machine may be counted. They describe their claim as an "as-applied" challenge based on the allegedly standardless and partisan application of the (allegedly facially standardless) statute in Palm Beach, Broward, Dade, and Volusia Counties. Plaintiffs' chief objection is that different criteria used by different counties, or by different election officials within a county, may mean that the same ballot rejected in one instance is accepted in another instance, or vice versa. They contend that such unequal treatment violates the Equal Protection Clause and that the lack of standards by itself violates the Due Process Clause. Plaintiffs also contend that the absence of statutory standards for when a manual recount occurs permits arbitrary and partisan decision-making, exacerbates the potential for unequal treatment of ballots, and thus warrants a federal court's intervention.

Second, Plaintiffs assert that they are denied due process and equal protection because, under Fla. Stat. § 102.166(4), ballots in one county may be manually recounted while ballots in another county are not. They contend that, as a result, similarly situated voters will not be treated similarly based purely on the fortuity of where they reside; a ballot that would be counted in one county pursuant to a manual recount may not be counted elsewhere because that voter's county did not conduct such a recount.

Defendants, as well as the Intervenor-Appellee, dispute all of these contentions. They argue that Florida law does contain constitutionally adequate standards for evaluating when a manual recount should occur and for evaluating the ballots during such a recount, and that Plaintiffs' as-applied claim fails because no record evidence shows that those standards have been employed in an arbitrary or partisan fashion. They also maintain that allowing decisions to be made on whether a manual recount occurs on a county-by-county basis is reasonable and consistent with the approach taken by other states, and that in any event no constitutional violation is present for many reasons, such as there is no record evidence indicating that a recount request was made and accepted in one Florida county while a request made in a different county was rejected. More generally, they raise a series of arguments for the proposition that Plaintiffs' challenge to Florida's election laws does not rise to a level that would warrant federal intervention.

The district court, weighing the parties' arguments, determined that Plaintiffs had failed to show a substantial likelihood of success on the merits. We have reviewed the competing arguments. To some extent, our consideration of these arguments is shaped by the practical difficulties of marshaling an adequate record when ongoing and unexpected events continually alter the key facts. In this case, only limited affidavits and a few documents were introduced into the record before the district court. No formal discovery has been undertaken, and, as yet, no evidentiary hearing has been held in this case. Many highly material allegations of facts are vigorously contested. Preliminary injunction motions are often, by necessity, litigated on an undeveloped record. But an undeveloped record not only makes it harder for a plaintiff to meet his burden of proof, it also cautions against an appellate court setting aside the district court's exercise of its discretion.

However, we need not decide the merits of the case to resolve this appeal, and therefore, do not decide them at this time. The district court rejected Plaintiffs' preliminary injunction motion not only because it found no likelihood of success on the merits, but also on the separate and independent ground that Plaintiffs had failed to show that irreparable injury would result if no injunction were issued. We may reverse the district court's order only if there was a clear abuse of discretion. See, e.g., Carillon Importers, Ltd. v. Frank Pesce Int'l Group Ltd., 112 F.3d 1125, 1126 (11th Cir. 1997) (per curiam); Revette v. International Ass'n of Bridge, Structural & Ornamental Iron Workers, 740 F.2d 892, 893 (11th Cir. 1984) ("The district court's decision will not be reversed unless there is a clear abuse of discretion."); Harris Corp. v. National Iranian Radio & Television, 691 F.2d 1344, 1354 (11th Cir. 1982). Because Plaintiffs still have not shown irreparable injury, let alone that the district court clearly abused its discretion in finding no irreparable injury on the record then before it, the denial of the preliminary injunction must be affirmed on that basis alone.

A district court may grant injunctive relief only if the moving party shows that: (1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest. See McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998) (citing All Care Nursing Serv., Inc. v. Bethesda Mem'l Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir. 1989)). In this Circuit, "[a] preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the 'burden of persuasion'" as to each of the four prerequisites. Id. (internal citation omitted); see also Texas v. Seatrain Int'l, S.A., 518 F.2d 175, 179 (5th Cir. 1975) (grant of preliminary injunction "is the exception rather than the rule," and plaintiff must clearly carry the burden of persuasion). ⁽⁸⁰⁾ A showing of irreparable injury is "'the sine qua non of injunctive relief.'" Northeastern Fla. Chapter of the Ass'n of Gen. Contractors v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990) (quoting Frejlach v. Butler, 573 F.2d 1026, 1027 (8th Cir. 1978)); see also Doran v. Salem Inn, Inc., 422 U.S. 922, 931, 95 S. Ct. 2561, 2568 (1975) ("The traditional standard for granting a preliminary injunction requires the plaintiff to show that in the absence of its issuance he will suffer irreparable injury."); Robertson, 147 F.3d at 1306 (plaintiff must show "irreparable injury will be suffered"); Harris Corp., 691 F.2d at 1356-57 (concluding that district court "did not abuse its discretion in finding a substantial likelihood of irreparable injury to [the plaintiff] absent an injunction"); Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981) (to be granted a preliminary injunction plaintiffs must show "a substantial likelihood that they would suffer irreparable injury"). ⁽⁸¹⁾

Significantly, even if Plaintiffs establish a likelihood of success on the merits, the absence of a substantial likelihood of irreparable injury would, standing alone, make preliminary injunctive relief improper. See Snook v. Trust Co. of Georgia Bank of Savannah, N.A., 909 F.2d 480, 486 (11th Cir. 1990) (affirming denial of preliminary injunction even though plaintiff established likelihood of prevailing because plaintiff failed to meet burden of proving irreparable injury); City of Jacksonville, 896 F.2d at 1285 (reversing preliminary injunction based solely on plaintiff's failure to show irreparable injury); Flowers Indus. v. FTC, 849 F.2d 551, 552 (11th Cir. 1988) (same); United States v. Lambert, 695 F.2d 536, 540 (11th Cir. 1983) (affirming denial of preliminary injunction and stating that a plaintiff's "success in establishing a likelihood it will prevail on the merits does not obviate the necessity to show irreparable harm"). As we have emphasized on many occasions, the asserted irreparable injury "must be neither remote nor speculative, but actual and imminent." City of Jacksonville, 896 F.2d at 1285 (quoting Tucker Anthony Realty Corop. v. Schlesinger, 888 F.2d 969, 973 (2d Cir. 1989)); accord, Chacon v. Granata, 515 F.2d 922, 925 (5th Cir. 1975) ("An injunction is appropriate only if the anticipated injury is imminent and irreparable.").

At this time, Plaintiffs cannot demonstrate a threat of continuing irreparable harm. At the moment, the candidate Plaintiffs (Governor Bush and Secretary Cheney) are suffering no serious harm, let alone irreparable harm, because they have been certified as the winners of Florida's electoral votes notwithstanding the inclusion of manually recounted ballots. Moreover, even if manual recounts were to resume pursuant to a state court order, ⁽⁸²⁾ it is wholly speculative as to whether the results of those recounts may eventually place Vice President Gore ahead. See Church v. City of Huntsville, 30 F.3d 1332, 1337 (11th Cir. 1994) ("a party has standing to seek injunctive relief only if the party alleges, and ultimately proves, a real and immediate -- as opposed to a merely conjectural or hypothetical -- threat of future injury"). At the moment it also remains speculative whether such an order may be forthcoming. Indeed, the Florida Circuit Court in Leon County considering the Vice President's contest to the final certification has now denied the Vice President's request for resumption of manual recounts as part of its broader judgment in the entire contest action. This development reinforces that the candidate Plaintiffs are suffering no serious harm. Moreover, as noted earlier, the United States Supreme Court has now vacated the Florida Supreme Court's decision, raising still further doubt about the likelihood of any substantial injury. Nor are the voter Plaintiffs (all of whom allege that they voted for Governor Bush and Secretary Cheney) suffering serious harm or facing imminent injury. No voter Plaintiff claims that in this election he was prevented from registering to vote, prevented from voting or prevented from voting for the candidate of his choice. Nor does any voter claim that his vote was rejected or not counted. The cases called to our attention by the parties that have warranted immediate injunctive relief have involved these kind of circumstances. Even assuming Plaintiffs can assert some kind of injury, they have not shown the kind of serious and immediate injury that demands the extraordinary relief of a preliminary injunction. Additionally, any alleged voter injury, unrelated to the outcome of the election certified by the Florida Secretary of State, can be adequately remedied later. And although these Plaintiffs asse